This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 BANK OF OKLAHOMA, N.A., 2 Plaintiff-Appellant, 3 v. No. 32,481 4 ROCKY C. MARTINEZ, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Clay Campbell, District Judge 8 Susan C. Little & Associates, Ltd. 9 Susan C. Little 10 Albuquerque, NM 11 for Appellant 12 Rocky C. Martinez 13 Albuquerque, NM 14 Pro Se Appellee 15 MEMORANDUM OPINION 16 FRY, Judge. 17 Plaintiff, Bank of Oklahoma, N.A., appeal s from the district court’s grant of 18 summary judgment in its favor on its complaint seeking foreclosure of real property 19 owned by Defendant, Rocky C. Martinez. [RP 62, 96, 141, 146, 161] The district 202 court entered judgment in favor of Plainti ff in the amount of the principal balance, 1 interest, attorneys’ fees, and costs of filing and service of process, but denied 2 Plaintiff’s request for additional amounts for mortgage insurance, property taxes, 3 property insurance, appraisal, and forecl osure expenses, concluding these amounts 4 were “not supported by the record and/or not compensable costs under the law.” [RP 5 161, 164-66] We issued a notice proposing to summarily affirm and Plaintiff filed a 6 memorandum in opposition and a motion to supplement the record proper with a 7 transcript of the summary judgment hearing. We grant Plaintiff’s motion to 8 supplement the record but remain unpersuaded by Plaintiff’s arguments and affirm. 9 In our notice, we proposed to affirm on the grounds that the expenses Plaintiff 10 seeks are not litigation costs within the meaning of Rule 1-054(D) NMRA, and if 11 viewed as expenses/damages under a contr act theory, are not supported by the record. 12 Plaintiff continues to argue that the e xpenses it seeks “should be recoverable under 13 Rule 1-054(D) because they are supported by operating contract in this matter.” [MIO 14 1-2] We disagree. Rule 1-054(D) addresses costs of litigation. See Hale v. Basin 15
Motor Co. , 110 N.M. 314, 321, 795 P.2d 1006, 1013 (1990) (“A statutory award of 16 costs is intended to reimburse the prev ailing party for the expenses incurred in 17 litigation.”). The rule provides that certaintypes of costs are generally recoverable 18 to the prevailing party, including filing fees, f ees for service, jury fees, transcript fees, 193 deposition costs, certain witness expenses and expert witness fees, translator and 1 interpreter fees, and fees involving the production of exhibits and certification of 2 documents. Rule 1-054(D)(2). The expenses that Plaintiff seeks, which it describes 3 as supported by the mortgage and note, are not litigation costs within the meaning of 4 Rule 1-054(D). 5 Plaintiff also continues to argue that th e expenses it seeks are recoverable as a 6 matter of law and were adequately supported by the record. We do not decide whether 7 the expenses were theoretically recoverable in this action because they were not 8 adequately supported by the record. Plaintiff submitted an affidavit in support of its 9 motion for summary judgment, requesti ng the following: escrow/impound required 10 ($7,195.35), mortgage insurance premium ($1,982.40), late charges ($829.40), fees 11 assessed with payoff quote ($20.00), fees required with payoff funds ($25.00), and 12 fees currently assessed ($400.00). [RP 72] Following the summary judgment hearing, 13 Plaintiff submitted an affidavit in support of attorneys’ fees and costs. [RP 154] 14 Plaintiff indicated the amounts it spent on the filing fee, service of process, recording 15 of notice of lis pendens, title search, and updated title search. [RP 155-56] However, 16 Plaintiff made no reference to the amounts it in cluded in its earlier affidavit. Plaintiff 17 states that it submitted a proposed form of judgment that included updated figures for 18 mortgage insurance, property tax, property insurance, and the appraisal, but it appears 194 that Plaintiff did not include any additi onal documentation supporting its request for 1 these amounts. [RP 165, 169] 2 Plaintiff argues that the affidavit it submitted in support of its motion for 3 summary judgment “provided testimony and ev identiary support” for the expenses it 4 seeks and included the required documentati on as to the amount of the expenses. 5 [MIO 4-5] Plaintiff argues that “[a]t the very least, the records support [its] 6 entitlement to the sums requested in the orig inal [a]ffidavit.” [MIO 5] We disagree. 7 Plaintiff attached six pages of supporting documents to its affidavit. [RP 74-79] 8 Plaintiff does not connect the amount of e xpenses it seeks to any numbers contained 9 in these documents. [RP 72] Moreover, th e categories of expenses that Plaintiff 10 stated it was seeking in its affidavit do not match the categories of expenses that 11 Plaintiff included in its proposed form of judgment. In its affidav it, Plaintiff referred 12 to the following categories of expenses : “Escrow/Impound Required, MI Premium 13 Due, Late Charges, Fees Assessed with Payoff Quote, Fees Required with Payoff 14 Funds, and Fees Currently Assess [sic].” [RP 72] In the proposed form of judgment, 15 Plaintiff referred to: “PMI, Tax, Insuran ce, Appraisal, MI Premium, and Foreclosure 16 Expenses.” [RP 165-66] It is not clear how these categories tracked each other. On 17 this record, we conclude that Plaintiff faile d to meet its burden of establishing that it 18 was entitled to judgment in its favor on the expenses it sought. 195 Plaintiff also continues to argue that it was denied due process in the district 1 court. Plaintiff contends that it did not have notice that th e district court was 2 considering denying its request for expenses and was thus “denied any fair 3 opportunity to be heard on this matter.” [MIO7] As we stated in our calendar notice, 4 “[t]he question of whether anindividual was afforded due process is a question of law 5 that we review de novo.” State ex rel. Children, Youth & Families Dep’t v. Mafin M. , 6 2003-NMSC-015, ¶ 17, 133 N.M. 827, 70 P.3d 1266. 7 We have reviewed the transcript of the summary judgment hearing and 8 conclude that Plaintiff was not denied due process. The district court held a hearing 9 on Plaintiff’s motion for summary judgment and heard argument from Defendant, 10 appearing pro se, and counsel for Plaintiff. The parties argued the merits of Plaintiff’s 11 motion and the district court explaine d why it was granting summary judgment in 12 Plaintiff’s favor. At the end of the hearing, the district court asked counsel for 13 Plaintiff to submit a proposed form of judgment, attaching courtesy copies of its 14 affidavit in support of costs. [SRP Tr. 6/ 18/12, 18] Counsel for Plaintiff never raised 15 the issue of the expense it was seeking and was in no way denied the opportunity to 16 argue it was entitled to judgment in its favor on those expenses. Instead, Plaintiff 17 elected to rely on the affidavit it submitted in support of its motion for summary 18 judgment. 196 As a general rule, the district court has an obligation to afford a party the 1 opportunity to be heard on an issue. See Bass Enters. Prod. Co. v. Mosaic Potash 2 Carlsbad Inc. , 2010-NMCA-065, ¶ 53, 148 N.M. 516, 238 P.3d 885 (“Due process 3 is a flexible concept whose essence is the right to be heard at a meaningful time and 4 in a meaningful manner.” (alteration, internal quotation marks, and citation omitted)). 5 Where, as here, there is no indication that a party made an effort to be heard on an 6 issue, we perceive no denial of due process. 7 For the reasons stated above and in our notice, we affirm. 8 IT IS SO ORDERED. 9

10 CYNTHIA A. FRY, Judge 11 WE CONCUR: 12

13 RODERICK T. KENNEDY, Chief Judge 14

15 JAMES J. WECHSLER, Judge 16 * 17